When it Comes to eDiscovery, You Play to Win the Game!: eDiscovery Best Practices

This week’s post for IPRO’s blog discusses the most important eDiscovery phase and how it drives all the other phases. After all, you play to win the game!

Pop quiz, which EDRM phase is the most important (not counting Information Governance, which is an entire discipline unto itself), yet is least discussed on eDiscovery blogs? Is it Preservation? Review? Production?

I could tell you, but what’s the fun in that? Instead, I’ll give you a hint.

You Play to Win the Game!

When he was the head coach of the New York Jets in 2002, Herm Edwards was asked (by a reporter after a game that the Jets lost, taking them to 2-5 on the season) whether he had to talk to his team about not giving up on the season. His response was this:

“This is what’s great about sports. YOU PLAY TO WIN THE GAME!” – Edwards responded emphatically.

How did the Jets wind up the season?

They finished 7-2 to win the AFC East that year and routed a Peyton Manning led Indianapolis Colts team 41-0 in the first round of the playoffs before losing to the eventual AFC champions, the Oakland Raiders. That’s playing to win the game!

In sports, you can’t win the game before it’s played or the case before it’s tried, but you can certainly lose it beforehand with poor “practice” or poor execution of earlier phases.

Does that give you a good hint? I would hope so! If not, you can find out which one it is on IPRO’s blog here. It’s just one more click! And you can also find out when you should start thinking about that phase and what you need to do to “win” the game! After all, that’s why you play!

So, what do you think?  Do you think we should be talking about this phase more than we do?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: IPRO is an Educational Partner and sponsor of eDiscovery Today

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

One comment

  1. I’ve heard it said that the best trial lawyers draft the jury charge at the start of a case so as to focus on the most important objective: the verdict. Great advice, but I’ve yet to meet a lawyer who did it.

    So, noble as the sentiment might be, I can’t agree that Presentation is the most important EDRM stage. First, only one in a hundred cases are tried, so courtroom presentation rarely occurs. More. discovery is not solely a process to discover admissible evidence; in fact, FRCP Rule 26(b)(1) expressly notes that “Information within [the] scope of discovery need not be admissible in evidence to be discoverable. Discovery is geared to understanding and evaluating a dispute, not merely (and certainly not necessarily) developing proof for the trier of fact.

    Those who carp about how few items produced in discovery get used as exhibits miss the point. If a producing party gives me ten thousand documents and I use one in court, is that proof that discovery is wasteful or that it’s working? If only the one document was the “right” document, why were the others produced as relevant? Diamonds and gold don’t lie on the ground; you have to dig through a lot of ore to extract the treasure.

    Opposing parties bring different goals and sensibilities to assessment of the information exchanged in discovery. It’s the advocate’s role to fashion the proof and argument. There is only one truth, but it can be found and illuminated in countless ways.

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